Texas Department of Insurance, Division of Workers' Compensation v. Linda Green ( 2015 )

ACCEPTED
01-15-00321-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/15/2015 6:17:53 PM
CHRISTOPHER PRINE
CLERK
DOCKET NO. 01-15-00321-CV
_____________________________________
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS
6/15/2015 6:17:53 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
_____________________________________ Clerk
TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’
COMPENSATION,
Appellant,
v.
LINDA GREEN
Appellee.
On Appeal from
The 133rd Judicial District Court of Harris County, Texas
Cause No. 2010-25688
RESPONDENT’S BRIEF
David Brenner
State Bar No. 2958020
Elizabeth Brenner
State Bar No. 24040570
Belinda May Arambula
State Bar No. 24060241
BURNS ANDERSON JURY & BRENNER,
L.L.P.
P.O. Box 26300
Austin, Texas 78755-6300
(512) 338-5322 (telephone)
(512) 338-5363 (facsimile)
Attorneys for Zurich American Insurance
Company
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ............................................. vi
ISSUE PRESENTED .............................................................................................. vii
ISSUE ONE ............................................................................................................ vii
Does the Declaratory Judgment Act confer jurisdiction on a court to
address an issue that (1) was not timely and properly presented to the
appeals panel, and (2) is statutorily subject to the judicial review process
under the Texas Labor Code? ............................................................................ vii
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT AND AUTHORITIES ........................................................................5
ISSUE ONE (Restated) ..............................................................................................5
Does the Declaratory Judgment Act confer jurisdiction on a court to
address an issue that (1) was not timely and properly presented to the
appeals panel, and (2) is statutorily subject to the judicial review process
under the Texas Labor Code? ...............................................................................5
A. Standard of Review ...............................................................................5
B. The Texas Labor Code limits suits for judicial review to those
issues addressed by the appeals panel after the exhaustion of
administrative remedies.........................................................................5
C. The Declaratory Judgment Act cannot be utilized to expand the
scope of judicial review.........................................................................8
CONCLUSION ........................................................................................................12
ii
PRAYER ..................................................................................................................12
CERTIFICATE OF SERVICE ................................................................................14
CERTIFICATE OF COMPLIANCE .......................................................................15
APPENDIX ..............................................................................................................16
iii
INDEX OF AUTHORITIES
Page
Cases
Beacon Nat’l Ins. Co. v. Montemayor,
86 S.W.3d 260 (Tex. App.—Austin 2002, no pet.). ..............................................8
Ben Robinson Co. v. Texas Workers’ Comp. Comm’n,
934 S.W.2d 149 (Tex. App.—Austin 1996, writ denied) ......................................8
BHP Petroleum Co. Inc. v. Millard,
800 S.W.2d 838 (Tex. 1990) ..................................................................................9
ESIS, Inc., Serv. Contractor v. Johnson,
908 S.W.2d 554 (Tex. App.—Fort Worth 1995, writ denied) ..............................6
Harris County Emergency Serv. Dist. No. 1 v. Miller,
122 S.W.3d 218 (Tex. App.—Houston [1st Dist.] 2003, no pet.) .........................7
MBM Fin. Corp. v. Woodlands Operating Co., L.P.,
292 S.W.3d 660 (Tex. 2009) ................................................................................11
Strayhorn v. Raytheon E-Sys., Inc.,
101 S.W.3d 558 (Tex. App.—Austin 2003, pet. denied) .......................................8
Texas Dep’t of Ins., Div. of Workers’ Comp. v. Lumbermens Mut. Cas.,
212 S.W.3d 870 (Tex. 2006) ................................................................................10
Texas Liquor Control Bd. v. Canyon Creek Land Corp.,
456 S.W.2d 891 (Tex. 1970) ................................................................................11
Texas Mun. Power Agency v. Pub. Util. Comm’n,
100 S.W.3d 510 (Tex. App.—Austin 2003) ........................................................12
Trinity Universal Ins. Co. v. Day,
155 S.W.3d 337 (Tex. App.—El Paso 2004, pet. denied) .....................................5
Universal Printing Co. v. Premier Victorian Homes, Inc.,
73 S.W.3d 283 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) .....................9
iv
Weaver v. E-Z Mart Stores, Inc.,
942 S.W.2d 167 (Tex. App.—Texarkana 1997, no pet.) .......................................8
Young Chevrolet, Inc. v. Texas Motor Vehicle Bd.,
974 S.W.2d 906 (Tex. App.—Austin 1998, pet. denied) ...................................8, 9
Statutes
TEX. LAB. CODE § 410.251 ........................................................................................5
TEX. LAB. CODE § 410.302 ........................................................................................6
v
STATEMENT REGARDING ORAL ARGUMENT
Respondent requests oral argument because of the complexity of the factual
and legal issues presented for review. Respondent believes oral argument would
assist this Court in resolving the conflicting authority on the issues.
vi
ISSUE PRESENTED
ISSUE ONE
Does the Declaratory Judgment Act confer jurisdiction on a court
to address an issue that (1) was not timely and properly presented
to the appeals panel, and (2) is statutorily subject to the judicial
review process under the Texas Labor Code?
vii
DOCKET NO. 01-15-00321-CV
_____________________________________
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
_____________________________________
TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’
COMPENSATION,
Appellant,
v.
LINDA GREEN
Appellee.
On Appeal from
The 133rd Judicial District Court of Harris County, Texas
Cause No. 2010-25688
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
Zurich American Insurance Company (“Zurich”) requests that this Court
reverse the Trial Court’s Order Denying Appellant’s Plea to the Jurisdiction.
STATEMENT OF FACTS
This lawsuit is a judicial review proceeding that arises out of a workers’
compensation claim filed by Linda Green (“Green”) with the Texas Department of
Insurance, Division of Workers’ Compensation (“DWC”). Following a December
10, 2009 contested case hearing, the only issue to be decided was: “Does the
1
compensable injury of August 2, 2005 sustained by the claimant extend to include
the left ankle fracture, compression fracture L1 and T12-L2 conditions on or after
7/29/09?”1 The hearing officer decided that the compensable injury of August 2,
2005 sustained by the claimant does not extend to include the left ankle fracture,
compression fracture L1 and T12-L2 conditions on or after 7/29/09.2 No other
issues were decided by the hearing officer. Specifically, there was no challenge or
issue relating to the validity of the injurious practice defense.
Green filed a request for review to the DWC appeals panel.3 In her request
for review, Green did not challenge the hearing officer’s consideration of her
injurious practices.4 Green limited her request for review to certain findings of
fact, conclusions of law, and evidentiary issues, but it is completely devoid of a
challenge to the defense of injurious practices.5
On April 22, 2010, Green filed an original petition seeking judicial review of
four issues never decided by DWC.6 First, whether the claimant did not comply
with physical therapy on several occasions; second, removal of cast; third,
medication; and fourth, hindered recovery. No other issues were raised by judicial
review and no relief was specifically requested of the trial court. Again,
1
CR 7.
2
Id.
3
Appendix No. 1.
4
Id.
5
Id.
6
CR 1.
2
specifically, there was no objection or request for declaratory relief sought with
respect to the injurious practices.
On September 12, 2011, after the statute of limitations for judicial review
proceedings expired, Green filed an amended petition, for the first time seeking
review of the DWC’s decision and a declaratory action.7 Through the declaratory
action, Green, for the first time, complained that the DWC hearing officer
inappropriately permitted the defense of injurious practices.
Zurich filed a Plea to the Jurisdiction challenging the trial court’s authority
to entertain Green’s declaratory judgment action.8 The DWC intervened in the
litigation, also challenging the trial court’s authority to entertain a declaratory
judgment action.9 After a hearing, the trial court denied both Pleas to the
Jurisdiction.10 Zurich filed an Original Petition for Writ of Mandamus on
December 3, 2012.11 This Court issued a Memorandum Opinion denying the Writ
on October 22, 2013.12 DWC filed a second Plea to the Jurisdiction addressing
Green’s request for declaratory judgment and attorneys’ fees under the Uniform
Declaratory Judgment Act “(UDJA”) on February 11, 2015.13 A hearing on the
second Plea to the Jurisdiction was held on March 2, 2015; the trial court denied
7
See CR 17.
8
Appendix No. 2.
9
CR 23.
10
CR 50.
11
Appendix No. 3.
12
Appendix No. 4.
13
CR 54.
3
TDI-DWC’s plea.14 DWC then filed an accelerated appeal on March 23, 2015.15
SUMMARY OF THE ARGUMENT
In workers’ compensation cases, judicial review is limited to issues decided
by the appeals panel, and a party may not seek review on issues the party did not
present to the appeals panel. A trial court may not enlarge this scope of review by
considering issues, or evidence probative of issues, that were not determined by the
DWC appeals panel. Nor may a party circumvent the statutorily mandated
limitations by asserting a declaratory judgment action. When a statute provides an
avenue for attacking a final agency order, a declaratory judgment action directed at
that order will not lie. This is so because a party is generally not entitled to
redundant remedies. When both the underlying suit and the declaratory judgment
action attack the validity of an administrative order, the court should dismiss the
request for declaratory relief for want of jurisdiction.
Green never challenged the availability of the defense of injurious practices
at the administrative level. It was not until the pendency of judicial review that
Green, for the first time, sought a declaration that the defense of injurious practices
was invalid. The declaratory judgment action is not properly before the trial court.
Therefore, the trial court erred in denying DWC’s Plea to the Jurisdiction.
14
CR 107.
15
CR 108.
4
ARGUMENT AND AUTHORITIES
ISSUE ONE (Restated)
Does the Declaratory Judgment Act confer jurisdiction on a court
to address an issue that (1) was not timely and properly presented
to the appeals panel, and (2) is statutorily subject to the judicial
review process under the Texas Labor Code?
A. Standard of Review
A plea to the jurisdiction is a dilatory plea used to contest the trial court’s
authority to determine the subject matter of the cause of action.16 The purpose of a
dilatory plea is not to review the case on the merits, but to establish a reason why
the merits should never be reached.17 Whether a trial court properly denies a plea
to the jurisdiction is a question of law examined under a de novo standard of
review.18
B. The Texas Labor Code limits suits for judicial review to those
issues addressed by the appeals panel after the exhaustion of
administrative remedies.
The Texas Labor Code provides that a party that has exhausted its
administrative remedies under this subtitle and is aggrieved by a final decision of
the appeals panel may seek judicial review.19 The Texas Labor Code limits the
issues that can be raised on judicial review at trial to those issues decided by the
appeals panel, as follows: “(b) A trial under this subchapter is limited to issues
16
Trinity Universal Ins. Co. v. Day, 155 S.W.3d 337, 339 (Tex. App.—El Paso 2004, pet.
denied).
17
Id.
18
Id.
19
TEX. LAB. CODE § 410.251.
5
decided by the appeals panel and on which judicial review is sought.”20 The
pleadings must specifically set forth the determinations of the appeals panel by
which the party is aggrieved.21 There is no provision in the Texas Workers’
Compensation Act authorizing the trial court to enlarge this scope of review by
considering issues, or evidence probative of issues, that were not determined by the
DWC appeals panel.22
Texas courts explain that a failure to raise a defense and, by logical
extension. a challenge to the defense at any stage of the administrative review
process waives the defense and, by extension, a challenge to the defense. 23 In ESIS,
Inc. Serv. Contractors v. Johnson, the court explained that the employer’s failure
to raise the intoxication defense at the administrative review process waives the
defense and the trial court is barred from adjudicating the issue on appeal. The
court held that the defense must be raised by the employer at the administrative
level in order to be preserved for appeal to the trial court. Green never raised a
challenge to the availability or validity of the injurious practice defense at the
administrative level.
Green never challenged the availability of the defense of injurious practices
at the administrative level. It was not until September 13, 2011, during the
20
TEX. LAB. CODE § 410.302.
21
Id.
22
ESIS, Inc., Serv. Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.—Fort Worth 1995, writ
denied)
23
Id. at 562.
6
pendency of judicial review, that Green, for the first time, objected to the defense
of injurious practices and sought a declaration that the defense is invalid. This
issue was not properly before the trial court. The validity of the defense was never
raised during the administrative review phase. Issues that were not decided at the
contested case hearing, or by the appeals panel, pursuant to section 410.302 of the
Texas Labor Code, cannot be raised for the first time at trial. Thus, the trial court
lacks jurisdiction to entertain issues not decided by the appeals panel. Moreover,
challenges to the defense that are never raised at the administrative level are
waived.
In Harris Co. Emergency Serv. Dist. v. Miller, the Houston Court of Appeals
explained that HCESD’s failure to respond to Miller’s request for review of the
contested case hearing officer’s decision to the DWC appeals panel was a failure to
exhaust administrative remedies.24 The court held because HCESD failed to
establish its right to proceed on judicial review, the trial court should have
rendered a take-nothing judgment. The court further noted “[t]he vitality and
thoroughness of the agency-review process will fast be diluted if parties are
allowed the option to participate or not in the successive phases.” 25 Likewise, here,
Green did not raise a challenge to the defense of injurious practices on request for
24
Harris Co. Emergency Serv. Dist. No. 1 v. Miller, 122 S.W.3d 218 (Tex. App.—Houston [1st
Dist.] 2003, no pet.)
25
Id. at 225.
7
review to the appeals panel. Green should not be permitted to dilute the agency
review process by raising it for the first time under the guise of a declaratory
judgment action that challenges the finality of an appeals panel decision.
The fact that Green appeared pro se has no impact on the requirements of the
review process. Courts have consistently held that pro se litigants must comply
with all procedural requirements and are subject to the same standards applicable
to a licensed attorney.26
C. The Declaratory Judgment Act cannot be utilized to expand the
scope of judicial review.
To establish a trial court’s subject-matter jurisdiction to grant relief under
the UDJA, a party must plead the existence of an “underlying controversy” within
the scope of section 37.004 of the Civil Practice and Remedies Code.27 However,
the power of courts to issue declaratory judgments in the face of administrative
proceedings is limited.28 When a statute provides an avenue for attacking a final
agency order, a declaratory judgment action directed at that order will not lie.29
This is so because a party is generally not entitled to redundant remedies.30 “There
is no basis for declaratory relief when a party is seeking in the same action a
26
Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.—Texarkana 1997, no pet.).
27
Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558, 572 (Tex. App.—Austin 2003, pet.
denied).
28
Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.—Austin 2002, no pet.).
29
Id.; Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex. App.—
Austin 1998, pet. denied); Ben Robinson Co. v. Texas Workers’ Comp. Comm’n, 934 S.W.2d
149, 153 (Tex. App.—Austin 1996, writ denied).
30
See Young Chevrolet, 974 S.W.2d at 911; Ben Robinson, 934 S.W.2d at 153.
8
different, enforceable remedy, and a judicial declaration would add nothing to what
would be implicit or express in a final judgment for the enforceable remedy.”31
When both the underlying suit and the declaratory judgment action attack the
validity of an administrative order, the court should dismiss the request for
declaratory relief for want of jurisdiction.32
Here, Green’s judicial review suit regarding whether her compensable injury
was the producing cause of particular injuries after July 29, 2009 was pending
before the trial court when Plaintiff amended her petition seeking a declaratory
judgment action. To succeed on judicial review, Green must establish that the work
injury was the producing cause of her conditions after July 29, 2009. In an effort to
avoid this burden, Green artfully, through declaratory judgment action, requested
the trial court declare that her injurious practices cannot be a basis for finding the
work injury was not the producing cause of her conditions after July 29, 2009.
Texas precedent holds that declaratory judgment actions are not available to settle
disputes pending before a court.33 Thus, Green cannot artfully plead, through the
guise of declaratory judgment action, for the court to rule upon an element of her
cause of action that is already pending before the trial court.34
Both statute and case law carve out a limited and precise role for declaratory
31
Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied).
32
See, Young Chevrolet, Inc., 974 S.W.2d at 911.
33
BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838 (Tex. 1990).
34
Id.
9
judgments under the UDJA. The UDJA is not meant to supplant other remedies,
including the exclusive remedy provision under the Texas Labor Code. Nor is the
UDJA meant to address specific agency orders. Zurich anticipates Green will cite
to the Lumbermens35 decision for support when, in fact, Lumbermens supports
Zurich’s position. The case involved a carrier’s use of declaratory judgment to
challenge the Division of Workers’ Compensation’s issuance of advisories. The
Lumberman court authorized use of UDJA under this circumstance because the
declaratory judgment did not target the appeals panel holding regarding the
specific advisory; instead, it complained about the broader concern of the
Division’s role in the issuance of advisories.36 At the same time, the court
reiterated that a declaratory judgment cannot be used to challenge a specific
Division decision.37 Accordingly, “when a statute provides a specific method for
attacking an agency order, a declaratory judgment action directed at that order will
not lie.”38 Here, the Texas Labor Code provides the exclusive means for
challenging the DWC appeals panel finding.
Green will also likely cite to MBM Fin. Corp. v. Woodlands Operating Co.
for the proposition that the existence of another remedy does not bar a declaratory
judgment action. Yet, the Texas Supreme Court, citing the Federal Rules of Civil
35
Texas Dep’t of Ins., Div. of Workers’ Comp. v. Lumbermens Mut. Cas., 212 S.W.3d 870 (Tex.
2006).
36
Id. at 874.
37
Id. at 875.
38
Id.
10
Procedure, stated, “The existence of another adequate remedy does not preclude a
declaratory judgment that is otherwise appropriate.”39 In the next sentence, the
Court reiterates the UDJA “cannot be invoked when it would interfere with some
other exclusive remedy or some other entity’s exclusive jurisdiction.”40
Any reliance by Green on Texas Liquor Control Board v. Canyon Creek or
Texas Mun. Power Agency v. Pub. Util. Comm’n is equally misplaced. In Texas
Liquor Control Board, the Texas Supreme Court refused to authorize use of
declaratory judgment to circumvent the administrative process for addressing a
suspended liquor license.41 Again, the Court explained that an action for
declaratory judgment will not be considered when there is another pending action
between the parties that will adjudicate the same issues.42
The Austin Court of Appeals also dealt with this issue at length in Texas
Mun. Power Agency v. Public Util. Comm’n. The case involved a suit for judicial
review in district court challenging an order of the Public Utility Commission
(PUC) and a subsequently filed UDJA action asking the court to construe chapters
of the Public Utility Regulatory Act. The appeals court allowed both actions to
proceed because the UDJA action did not duplicate the issues under judicial
39
MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex.
2009)(emphasis added).
40
Id.
41
Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895-96 (Tex. 1970).
42
Id.
11
review–each action sought a distinct type of relief.43 The UDJA action sought a
declaration regarding the agency’s authority, generally, under provisions of the
regulatory act; while the suit for judicial review sought a ruling on a specific PUC
order.44 However, here, the relief Green seeks through declaratory judgment is
indistinct from relief available through the administrative process. Green attempts
to use declaratory relief to bypass the administrative process by obtaining a ruling
on the DWC order. This is not a proper use of a declaratory judgment order. Thus,
the declaratory judgment action is not properly before the trial court and this Court
should reverse the trial court’s denial of the Plea to the Jurisdiction.
CONCLUSION
In sum, Green cannot utilize the UDJA as an avenue for relief on the
injurious practices issue. The issue was not raised at the administrative level and,
thus, it was waived. As Green may not seek relief under the UDJA, her claim
regarding the defense of injurious practices is barred.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Respondent, Zurich American
Insurance Company respectfully requests that this Court reverse the trial court’s
Order Denying Texas Department of Insurance, Division of Workers’
43
Texas Mun. Power Agency v. Pub. Util. Comm’n, 100 S.W.3d 510, 519 (Tex. App.—Austin
2003).
44
Id.
12
Compensation’s Plea to the Jurisdiction, and for such other and further relief to
which Respondent may be entitled.
Respectfully submitted,
BURNS ANDERSON JURY & BRENNER,
L.L.P.
P.O. Box 26300
Austin, Texas 78755-6300
(512) 338-5322 (telephone)
(512) 338-5363 (facsimile)
/s/ David Brenner
David Brenner
State Bar No. 02958020
Elizabeth Brenner
State Bar No. 24040570
dbrenner@bajb.com
Belinda May Arambula
State Bar No. 24060241
barambula@bajb.com
COUNSEL FOR RESPONDENT
13
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing pleading has
been forwarded to all parties listed below, on this 15th day of June 2015 in
accordance with Rule 9.5 of the Texas Rules of Appellate Procedure.
Ken Paxton, Texas Attorney General
Charles E. Roy,
First Assistant Attorney General
James E. Davis
Deputy Attorney General for Civil Litigation
David A Talbot, Jr.
Chief, Administrative Law Division
Dennis M. McKinney
Assistant Attorney General
Office of the Texas Attorney General
Administrative Law Division
P. O. Box 12548
Austin, TX 78711-2548
Bradley Dean McClellan
Law Offices of Richard Pena, P.C.
1701 Directors Blvd.
Suite 110
Austin, TX 78744
Raymond L. Kalmans
Stephen L. Brochstein
Schlanger, Silver, Barg & Paine, LLP
109 North Post Oak Lane, Ste. 300
Houston, TX 77024
/s/David Brenner
David Brenner
14
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Texas Rule of
Appellate Procedure 9.4 because this brief contains 3,357 words. This brief
complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4
because this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in Times New Roman 14 point.
/s/ DAVID BRENNER
15
APPENDIX
1. Green’s Request for Review
2. Zurich American Insurance Company’s Plea to the Jurisdiction
3. Zurich American Insurance Company’s Original Petition for Writ of
Mandamus
4. First Court of Appeals Memorandum Opinion
5. TEX. LAB. CODE § 410.251
6. TEX. LAB. CODE § 410.302
16
APPENDIX I
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ATTAChMENT:
Claltnonlll·inda Or~»
Carrlerr Zurich Amerio:an Jnsura11ce
II
f disagree with Finding uf'Fact Number .::l_be.:nps~ Medical from Ortbopnodk
C~nl!lr In (claimant exll2) states a cundition ofpareslholas, nurubness QQd pain
down loft leg would be JK!rmanent du" to the injlll')' to my t.l vertebJ·I'Ie body aud
tile !'11Sidu!tl n~uropothy, (Pg l) slatos l ~IY be n•c~ssar.v h• th~ fi•ture.
Also (f.ltdlwmt ~~#5) medical rec.ot'ds from Dr. Ronald Moon from Octllber ZIJ()II
tl!rt)ugh March 2009 shows tbe need fo)r .;on tinned lfelltmr.nt and m~dleatlons.
(clahn~ltf!J ex#6) Th•rapy ll.e<:ords whi~h .~flOW f WIJS Cd treatment I$ needed and
lhnt J have been ~nmpliant. (claimants ex#lO) Medical rep•u1 from deslguat~d
d<~etor:tl1S~ssed a 55% Impairment. (clnim~nt.9 exiiU) Medical Report fl-om Dr.
William Luphl!lCcl show' tbaH huve contlnutd problems and tbatl need reFerrals
!'or treat~nent of my llljurloo. (dnlntant ex#l4)1\tedlcal from Dr. Michael l(eudtic.k
stales he r~vlewod my extelJII.Ive records and l'it1d~ I need epidurals o>nd medlmtlmJ,,,
HI
I dl.'l'l~ with Conclusion of LHl'' Number J..bC<'>luse Medical from Otthopnedlc
Center Jn (cllllin~lll e~JI2) ~tate~ n conditio11 of par~Htheias, numbness and pain
d()Wlt lefll•g would be permanent due t11 the injury to IIIJ' J,.1 vertebrae body and
the residual neuroputhy, (t>g 2) states 1 will bave rltrorlic p~ln, b~ l1') ahrace
permanently, ~pg8) notes utber surgery 11.1ny lie I):.:#lOJ Medlcalrtport from designated I
doett1r WJIJ<)$-'Itd A 55% lo!pltkm~D.t. (claimants ex#l2) Medical Report {~om Dr. '
Wlll.ilun Lupiuacd shows that l bl!•e ''Ontin"f"/ probl\'hls IU!d tbnt I need ref~rrals
fl.lt lfeatment of illy tl!.lmi~s. (clruruant o:xill4) :W:edl86 S.W.3d 260 (Tex. App.-Austin 2002, no pet.) ....................................................... 7
Ben Robinson Co. v. Texas Workers' Comp. Comm'n,
934 S.W.2d 149 (Tex. App.-Austin 1996, writ denied) .............................................. 7
BHP Petroleum Co. Inc. v. Millard,
800 S.W.2d 838 (Tex. 1990) ......................................................................................... 8
ESIS, Inc., Serv. Contractor v. Johnson,
908 S.W.2d 554 (Tex. App.-Fort Worth 1995, writ denied) ...................................... 5
Harris County Emergency Serv. Dist. No. I v. Miller,
122 S.W.3d 218 (Tex. App.-Houston [1st Dist.] 2003, no pet.) ................................. 6
In re Texas Mut. Ins. Co.,
321 S.W.3d 655 (Tex. App.-Houston [14th Dist.] 2010, no pet.) ......................... vi, 4
Strayhorn v. Raytheon E-Sys., Inc.,
101 S.W.3d 558 (Tex. App.-Austin 2003, pet. denied) .............................................. 7
Universal Printing Co. v. Premier Victorian Homes, Inc.,
73 S.W.3d 283 (Tex. App.-Houston [1stDist.] 2001, pet. denied) ............................ 7
.Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ......................................................................................... 4
Young Chevrolet, Inc. v. Texas Motor Vehicle Bd.,
974 S.W.2d 906 (Tex. App.-Austin 1998, pet. denied) .............................................. 7
Statutes
TEX. GOV'T CODE § 22.221 ................................................................................................ vi
TEX. LAB. CODE§ 410.251 ................................................................................................. 4
TEX. LAB. CODE§ 410.302 ............................ ;.................................................................... 5
iv
STATEMENT OF THE CASE
Nature of underlying proceeding:
The underlying proceeding is a workers' compensation judicial review lawsuit in
which Plaintiff also seeks declaratory relief. Plaintiff Linda M. Green ("Green") filed suit
against Zurich American Insurance Company ("Zurich"), seeking judicial review of a
Texas Department of Insurance, Division of Workers' Compensation ("DWC") Appeals
Panel decision affirming that her compensable injury of August 2, 2005 does not extend
to include the left ankle fracture, compression fracture Ll, and T12-L2 cond.itions on or
after July 29, 2009. Green then amended her lawsuit seeking declaratory relief that the
hearing officer at the DWC inappropriately permitted the defense of injurious practices.
DWC then intervened. Both Zurich and DWC challenged the jurisdiction of the trial court
to entertain declaratory relief.
Respondent:
The respondent is Judge Jaclanel McFarland of the 133rd Judicial District Court of
Harris County Texas.
Respondent's action from which Relator seele! relief:
Zurich ("Relator") is seeking mandamus relief from the trial court's denial of the
plea to the jurisdiction.
v
STATEMENT OF JURISDICTION
The Court has power to grant the writ of mandamus pursuant to ~ections 22.22l(a)
and (b) of the Texas Government Code. Issuance of the writ is proper when a trial court
erroneously denied a plea to the jurisdiction. In re Texas Mut. Ins. Co., 321 S.W.3d 655
(Tex. App.-Houston [14th Dist.]2010, no pet.).
vi
ISSUE PRESENTED
The trial court has elected to exercise declaratory judgment jurisdiction on an issue
that is properly only addressed through the judicial review process of the Texas Labor
Code, on an issue not previously addressed by the appeals panel, and which is targeted
toward an element of a dispute pending before the court.
Issue 1: Does the Declaratory Judgment Act confer jurisdiction on a
court to address an issue that is statutorily subject to the judicial review
process identified by the Texas Labor Code and that was not timely and
properly presented to the Appeals Panel?
vii
NO. ________________
IN THE
COURT OF APPEALS
FOR THE
FOURTEENTH DISTRICT
HOUSTON, TEXAS
In Re: Zurich American Insurance Company
Respondent: Hon. Jaclanel McFarland
Real Party in Interest: Linda M. Green
On Mandamus from Cause No. 2010-25688
In the 133rd Judicial District Court
Harris County, Texas
TO THE HONORABLE COURT OF APPEALS OF TEXAS:
In accordance with the requirements of Rule 52 of the Texas Rules of Civil
Procedure, Zurich, as Relator, seeks the issuance of a writ of mandamus against
Respondent, the Honorable J aclanel McFarland, Judge of the 133rd Judicial District
Court, Harris County, Texas.
Zurich seeks mandamus relief because the trial court erroneously overruled the
challenge to its jurisdiction to entertain declaratory judgment in a workers' compensation
judicial review proceeding, on an issue not addressed or presented to the appeals panel
and targeting a subpart of an issue on judicial review. Mandamus is necessary because an
appeal is an inadequate remedy.
1
STATEMENT OF FACTS
This lawsuit is a judicial review proceeding that arises out of a workers'
compensation claim filed by Green with the DWC. Following a December 10, 2009
contested case hearing, the only issue to be decided was: "Does the compensable injury
of August 2, 2005 sustained by the claimant extend to include the left ankle fracture,
compression fracture Ll and Tl2-conditions on or after 7/29/09?" 1 The hearing officer
decided that the compensable injury ofAugust 2, 2005 sustained by the claimant does not
extend to include the left ankle fracture, compression fracture Ll and Tl2-L2 conditions
on or after 7/29/09. 2 No other issues were decided by the hearing officer. Specifically,
there was no challenge or issue relating to the validity of the injurious practice defense.
Green filed a request for review to the DWC's appeals panel. 3 In her request for
review, Green did not challenge the hearing officer's consideration of her injurious
practices. 4 Green limited her request for review to certain findings of fact, conclusions
of law, and evidentiary issues, but it is completely void of a challenge to the defense of
injurious practices. 5
On April 22, 2010, Plaintiff filed an Original Petition seeking judicial review of
four issues never decided the by DWC. 6 Whether the claimant did not comply with
physical therapy on several occasions; second, removal of cast; third, medication; and
fourth, hindered recovery. No other issues were raised by judicial review and no relief
1
See Plaintiffs Original Petition, Appendix I.
2 !d.
' See Claimant's Request for Review, Appendix 18.
4 !d.
s Id. .
6
Plaintiffs Original Petition, Appendix 1.
2
was specifically requested of the trial court. Again, specifically, there was no objection or
request for declaratory relief sought with respect to the injurious practices.
On September 12, 2011, after the statute of limitations for judicial review
proceedings expired, Plaintiff filed an Amended Petition, for the first time seeking review
of the DWC's decision and a declaratory action. 7 Through the declaratory action, Green,
for the first time, complained that the DWC hearing officer inappropriately permitted the
defense of injurious practices.
Zurich filed a Plea to the Jurisdiction challenging the trial court's authority to
entertain Green's declaratory judgment action. 8 The DWC intervened in the litigation,
also challenging the trial court's authority to entertain a declaratory judgment action. 9
After a hearing, the trial court denied both Pleas to the Jurisdiction. 10
SUMMARY OF THE ARGUMENT
In workers' compensation cases, judicial review is limited to issues decided by the
appeals panel and a party may not seek review on issues the party did not present to the
appeals panel. A trial court may not enlarge this scope of review by considering issues,
or evidence probative of issues, that were not determined by the DWC's appeals panel.
Nor may a party circumvent the statutorily mandated limitations by asserting a
declaratory judgment action. When a statute provides an avenue for attacking a final
agency order, a. declaratory-judgment action directed at that order will not lie. This is so
because a party is generally not entitled to redundant remedies. When both the underlying
7
See Plaintiff's FirstAmended Petition, Appendix 59.
8
Zurich's Plea to the Jurisdiction, Appendix 25.
9
DWC's Interventior and Plea to the Jurisdiction, Appendix 37.
10
Order denying Plea to the Jurisdiction, Appendix 99.
3
suit and the declaratory judgment action attack the validity of an administrative order, the
court should dismiss the request for declaratory relief for want of jurisdiction.
Green never challenged the availability of the defense of injurious practices at the
administrative level. It was not until the pendency of judicial review, that Green for the
first time sought a declaration that the defense of injurious practices was invalid. The
declaratory judgment action is not properly before this Court and should be dismissed for
want of jurisdiction.
ARGUMENTS AND AUTHORITIES
A. The standard of review.
Mandamus relief is available when the trial court clearly abuses its discretion and
when there is no other adequate remedy at law.n Issuance of the writ is proper when a
trial court erroneously denied a plea to the jurisdiction. 12
B. The Texas Labor Code limits suits for judicial review to those issues
addressed by the appeals panel after the exhaustion of administrative
remedies.
The Texas Labor Code provides that a party that has exhausted its administrative
remedies under this subtitle and is aggrieved by a final decision of the appeals panel may
seek judicial review. 13 The Texas Labor Code limits the issues that can be raised on
judicial review at trial to those issues decided by the appeals panel, as follows: "(b) A
trial under this subchapter is limited to issues decided by the appeals panel and on which
11
Wa/kerv. Packer, 827 S,W.2d 833,839-30 (Tex. 1992).
12
In re Texas Mutual Ins. Co., 321 S.W.3d 655.
13
TEX. LAB. CODE § 410.25!.
4
judicial review is sought." 14 The pleadings must specifically set forth the determinations
of the appeals panel by which the patty is aggrieved. 15 There is no provision in the Texas
Workers' Compensation Act authorizing the trial court to enlarge this scope of review by
considering issues, or evidence probative of issues, that were not determined by the
DWC's appeals panel, 16
Texas courts explain that a failure to raise a defense and, by logical extension a
challenge to the defense, at any stage of the administrative review process waives the
defense and, by extension, a challenge to the defense. 17 In ESIS, Inc. Serv. Contractors v.
Johnson, the court explained that the employer's failure to raise the intoxication defense
at the administrative review process waives the defense and the trial court is barred from
adjudicating the issue on appeal. The court held that the defense must be raised by the
employer at the administrative level in order to be preserved for appeal to the trial comt.
Green never raised a challenge to the availability or validity of the injurious practice
defense at the administrative level.
Green never challenged the availability of the defense of injurious practices at the
administrative level. It was not until September 13, 2011, during the pendency of judicial
review, that Green for the first time objected to the defense of injurious practices and
sought a declaration that the defense is invalid. This issue was not properly before the
trial court. .The. validity of the defense was never raised at the administrative review.
Issues that were not decided at the contested case hearing, or by the appeals panel,
14
TEX. LAB. CODE § 410.302.
"!d.
16
ESIS, Inc., Serv. Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.-Fort Worth 1995, writ denied).
17 !d. at 562. ·
5
pursuant to section 410.302 of the Texas Labor Code, cannot be raised for the first time at
trial. Thus, the trial court lacks jurisdiction to entertain issues not decided by the appeals
panel. Moreover, challenges to the defense that are never raised at the administrative
level are waived.
In Harris County Emergency Serv. Dist. v. Miller, the Houston Court of Appeals
explained that HCESD's failure to respond to Miller's request for review of the contested
case hearing offer's decision to the DWC's appeals panel was a failure to exhaust
administrative remedies. 18 The court held because HCESD failed to establish its right to
proceed on judicial review, the trial court should have rendered a take-nothing judgment.
The court further noted "[t]he vitality and thoroughness of the agency-review process will
fast be diluted if parties are allowed the option to participate or not in the successive
phases." 19 Likewise, here, Green did not raise a challenge to the defense of injurious
practices on request for review to the appeals panel. Green should not permitted to dilute
the agency review process by raising it for the first time under the guise of a declaratory
judgment action~ that challenges the finality of an appeals panel decision.
C. The Declaratory Judgment Act cannot be utilized to expand the scope
of judicial review
To establish a trial court's subject-matter jurisdiction to grant relief under the
Uniform Declaratory Judgment Act, a party must plead the existence of an "underlying
controversy" within the scope of section 37.004 of the Civil Practice and Remedies
18
Harris County Emergency Serv. Dis/. No. 1 v. Miller, 122 S.W.3d 218 (Tex. App.-Houston [1st l)ist.]2003, no
pet.)
1' ld at 225.
6
Code. 20 However, the power of courts to issue declaratory judgments in the face of
administrative proceedings is limited. 21 When a statute provides an avenue for attacking a
final agency order, a declaratory-judgment action directed at that order will not lie. 22 This
is so because a party is generally not entitled to redundant remedies. 23 "There is no basis
for declaratory relief when a party is seeking in the same action a different, enforceable
remedy, and a judicial declaration would add nothing to what would be implicit or
express in a final judgment for the enforceable remedy. 24 When both the underlying suit
aqd the declaratory judgment action attack the validity of an administrative order, the
court should dismiss the request for declaratory relief for want of jurisdiction. 25
Here, Green's judicial review suit regarding whether her compensable injury was
the producing cause of patticular injuries after July 29, 2009 was pending before the trial
court, when Plaintiff amended her petition seeking a declaratory judgment action. To
succeed on judicial review, Green must establish that the work injury was the producing
cause of her conditions after July 29, 2009. In an effort to avoid this burden, Green
artfully, through declaratory judgm()nt action, requested the trial court declare that her
injurious practices caimot be a basis for finding the work injury was not the producing
cause of her conditions after July 29, 2009. Texas precedent holds that declaratory
20
Strayhorn v. Raytheon E-Sys., Inc., I0 I S.W.3d 558, 572 (Tex. App.-Austin 2003, pet. denied).
21
Beacon Nat'/ Ins. Co. v. Montemay01; 86 S.W.3d 260, 267 (Tex. App.-Austin 2002, no pet.).
22
!d.; Young Chevrofet, Inc. v. Texas Motor Vehicle Bd, 974 S.W.2d 906, 911 (Tex. App.-Austin 1998, pet.
denied); Ben Robinson Co. v. Texas Workers' Camp. Comm 'n, 934 S.W.2d 149, !53 (Tex. App.-Austin 1996, writ
denied).
23
See Young Chevrolet, 974 S.W.2d at 911; Ben Robinson, 934 S.W.2d at 153.
24
Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.-Houston [1st Dis!.]
2001, pet. denied).
25
See, Young Chevrolet, Inc., 974 S.W.2d at 911.
7
judgment actions are not available to settle disputes pending before a court. 26 Thus,
Green cannot artfully plead, through the guise of declaratory judgment action, for the
court to rule upon an element of her cause of action that is already pending before the
trial court. 27
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator, Zurich American Insurance
Company respectfully requests that:
1. This Court issue a writ of mandamus directed to Respondent, commanding
her to rescind her order denying the plea to the jurisdiction and order that
the Plaintiffs declaratory judgment claims be dismissed for want of
jurisdiction.
2. This Court grant such other and further relief to which Relator may, by this
pleading or proper amendment thereto, show itself to be justly entitled.
Respectfully Submitted,
BURNS ANDERSON JURY & BRENNER,
L.L.P.
P.O. Box 26300
Austin, Texas 78755-6300
512-338-5322 (telephone)
512-338-5~acB!mile)
BY: kjy~~
DatidBl'(mner
Attorney in Charge
State Bar No. 02958020
dbrenner@bajb.com
Belinda May Arambula
State Bar No. 24060241
barambula@bajb.com
ATTORNEYSFORRELATOR
26
BHP Petroleum Co. Inc, v. Millard, 800 S.W.2d 838 (Tex. 1990).
21 Id.
8
STATE OF TEXAS §
§
COUNTY OF TRAVIS §
BEFORE ME, the undersigned notary public, on this day personally appeared
David Brenner, duly sworn by me on his oath deposed and said that he is attorney for
Relator in the above-entitled and numbered cause; that he has reviewed the petition and
.concluded that every factual statement in the petition is supported by competent evidence
included in the appendix or record; that the documents attached to the appendix are true
and correct copies of the records filed by the parties in the Harris County District Clerk's
office associated with the underlying pro mg.
SUBSCRIBED AND SWORN TO BEFORE ME on this the~day of
December, 2012, to certifY which witness my hand and official seal.
t""""'"'s;;;-s;;;';jj'""'l'
. L~ J~.~
Notary Pub!i6 in and for
~ -NQtary Public:, T ' C T
i. State ofT••.. . rav1s ounty, exas
...............................................................................-·i
~ ~'''''mnlll\'' Comm. Exp.-01~09~14
9
I
CERTIFICATE OF SERVICE
It is hereby certified that a true and concct copy of this original petition for writ of
mandamus has been senied upon the following listed individuals in accordance with Rule
9.5 of the Texas Rules of Appellate Procedure on this .;;J_ day of December 2012.
Bradley Dean McClellan
Law Offices of Richard Pena, P.C.
2028 East Ben White, Suite 220
Austin, TX 78741
Greg Abbott
Daniel T. Hodge
David C. Mattax
David A. Talbot
Dennis M. McKinney
Office of the Attorney General
P.O. Box .12548
Austin, Texas 78711-2548
10
APPENDIX4
Opinion issued October 22, 2013
In The
For The
NO. 01-12-01094-CV
IN RE ZURICH AMERICAN INSURANCE COMPANY, Relator
Original Proceeding on Petition for Writ ofMandamus 1
MEMORANDUM OPINION
By petition for writ of mandamus, Relator Zurich American Insurance
Company challenges the trial court's denial of a plea to the jurisdiction.
We deny relator's petition for writ of mandamus. All outstanding motions
are dismissed as moot.
The underlying cause of action is Linda M Green v. Zurich American Insurance
Co., in the District court of Harris County, Texas, 133rd Judicial District, cause
no. 2010-25688.
PER CURIAM
Panel consists of Justices Jennings, Sharp, and Brown.
2
APPENDIXS
§ 410.251. Exhaustion of Remedies, TX LABOR§ 410.251
Vernon's Texas Statutes and Codes Annotated
Labor Code (Refs & Annas)
Title 5· Workers' Compensation
Subtitle A. Texas Workers' Compensation Act
Chapter 410: Adjudication of Disputes (Refs &Annas)
Subchapter F. Judicial Review--General Provisions
V.T.C.A., Labor Code§ 410.251
§ 410.251. Exhaustion of Remedies
Currentness \~
I
I!
F
IIli
A party that has exhausted its administrative remedies under this subtitle and that is aggrieved by a fmal decision of the
appeals panel may seek judicial review under this subchapter and Subchapter G, 1 if applicable. j
'.
1;
ii
II
II
Credits li
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. I!i
Editors' Notes
REVISOR'S NOTE
2006 Main Volume
The source law refers to judicial review under "this chapter," meaning Chapter F of Article 6 of the Texas
Workers' Compensation Act (V.A.C.S. Article 8308-6.61 et seq.). That statute is revised in this chapter as this
subchapter and Subchapter G, and the revised law reflects this change.
Notes of Decisions containing your search terms (0)
View a11166
Footnotes
I
V.T.C.A., Labor Code§ 410.301 et seq.
V. T. C. A., Labor Code§ 410.251, TX LABOR§ 410.251
Current through the end of the 2011 Regular Session t:J 2012 Thomson Reuters. No clnint to original U.S. Government Worb.
and First Called Session of the 82nd LegislatureEnd
of Document
\\'"'' ·.lle~•NNext © 2012 Thomson Reuters. No claim to original U.S. Government Works. 1
APPENDIX6
§ 410.302. Admissibility of Records; Limitation of Issues, TX LABOR§ 410.302
Vernon's Texas Statutes and Codes Annotated
Labor Code (Refs &Annas)
Title 5. Workers' Compensation
Subtitle A. Texas Workers' Compensation Act
Chapter 410. Adjudication of Disputes (Refs & Annas)
Subchapter G. Judicial Review ofissues Regarding Compensability or Income or Death Benefits
V.T.C.A., Labor Code§ 410.302
§ 410.302. Admissibility of Records; Limitation of Issues
Effective: September 1, 2005
Currentness
(a) The records of a contested case hearing conducted under this chapter are admissible in a trial under this subchapter in
accordance with the Texas Rules of Evidence.
(b) A trial under this subchapter is limited to issues decided by the appeals panel and on which judicial review is sought. The
pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved.
Credits
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 265, § 3.204, eff. Sept. 1, 2005.
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V. T. C. A., Labor Code§ 410.302, TX LABOR§ 410.302
Current through the end ofthe 2011 Regular Session \\) 2012 Thomson Reuters. No claim to original U.S. Government Works.
and First Called Session of the &2nd LegislatureEnd
oi'Documcut
't.L•stL•;,vNext © 2012 Thomson Reuters. No claim to original U.S. Government \/Vorl